ICANN may be able to provide registrars, intellectual property interests and others with clarity about when domain names should be suspended as early as next month, according to compliance chief Allen Grogan.
With ICANN 53 kicking off in Buenos Aires this weekend, Grogan said he intends to meet with a diverse set of constituents in order to figure out what the Registrar Accreditation Agreement requires registrars to do when they receive abuse complaints.
“I’m hopeful we can publish something in the next few weeks,” he told DI. “It depends to some extent on what direction the discussions take.”
The discussions center on whether registrars are doing enough to take down domains that are being used, for example, to host pirated content or to sell medicines across borders.
Specifically at issue is section 3.18 of the 2013 RAA.
It requires registrars to take “reasonable and prompt steps to investigate and respond appropriately” when they receive abuse reports.
The people who are noisiest about filing such reports — IP owners and pharmacy watchdogs such as LegitScript — reckon “appropriate action” means the domain in question should be suspended.
The US Congress heard these arguments in hearings last month, but there were no witnesses from the ICANN or registrar side to respond.
Registrars don’t think they should be put in the position of having to turn off what may be a perfectly legitimate web site due to a unilateral complaint that may be flawed or frivolous.
ICANN seems to be erring strongly towards the registrars’ view.
“Whatever the terms of the 2013 RAA mean, it can’t really be interpreted as a broad global commitment for ICANN to enforce all illegal activity or all laws on the internet,” Grogan told DI.
“I don’t think ICANN is capable of that, I don’t think we have the expertise or resources to do that, and I don’t think the ICANN multistakeholder community has ever had that discussion and delegated that authority to ICANN,” he said.
Grogan notes that what kind of content violates the law varies wildly from country to country — some states will kill you for blasphemy, in some you can get jail time for denying the Holocaust, in others political dissent is a crime.
“Virtually everybody I’ve spoken with has said that is far outside the scope of ICANN’s remit,” he said.
However, he’s leaving some areas open for discussion,
“There are some constituents, including some participants in the [Congressional] hearing — from the intellectual property community and LegitScript — who think there’s a way to distinguish some kinds of illegal activities from others,” he said. “That’s a discussion I’m willing to have.”
The dividing line could be substantial risk to public health or activities that are broadly, globally deemed to be illegal. Child abuse material is the obvious one, but copyright infringement — where Grogan said treaties show “near unanimity” — could be too.
So is ICANN saying it’s not the content police except when it comes to pharmacies and intellectual property?
“No,” said Grogan. “I’m saying I’m willing to engage in that dialogue and have that conversation with the community to see if there’s consensus that some activities are different to others.”
“In a multistakeholder model I don’t think any one constituency should control,” he said.
In practical terms, this all boils down to 3.18 of the RAA, and what steps registrars must take to comply with it.
It’s a surprisingly tricky one even if, like Grogan, you’re talking about “minimum criteria” for compliance.
Should registrars, for example, be required to always check out the content of domains that are the subject of abuse reports? It seems like a no-brainer.
But Grogan points out that even though there could be broad consensus that child abuse material should be taken down immediately upon discovery, in many places it could be illegal for a registrar employee to even check the reported URL, lest they download unwanted child porn.
Similarly, it might seem obvious that abuse reports should be referred to the domain’s registrant for a response. But what of registrars owned by domain investors, where registrar and registrant are one and the same?
These and other topics will come up for discussion in various sessions next week, and Grogan said he’s hopeful that decisions can be made that do not need to involve formal policy development processes or ICANN board action.